Wanchoo, C. J. - (1.) THIS is a revision by Bhagwatilal and Dayakrishna against the order of commitment passed by the City Magistrate, Kotah, committing Daya Krishna for trial under sec. 302, and Bhagwatilal, who is Daya Krishna's father, for trial sec. 201 of the Indian Penal Code.
(2.) THE revision came up for hearing before a learned Single Judge of this Court and he has referred it to a Division Bench as it raises a point of law of some importance. Daya Krishna accused has been committed for trial for the murder of his wife Mst. Kunti, and this murder is sid to have taken place on the night between the 22nd the 23rd of Sept. , 1952. His father Bhagwatilal has been committed for causing the evidence of the offence to disappear with the intention of screening the offender. The contention on behalf of the applicant is that there is no evidence to justify the commitment, and therefore, this Court should quash the commitment under sed. 215 of the Code of Criminal Procedure. Sec. 215 reads as follows: - "a commitment once made under sec. 213 by a competent Magistrate or by a Civil or Revenue Court under sec. 478, can be quashed by the High Court only, and only on a point of law. " The point of law whether it is open to this Court to quash the commitment on the ground that there is no evidence in support of it; and whether this is a quistion of law. As has been pointed out in the order of reference, there is difference of opinion between the various High Courts in India on this question. The earliest case on the point is Empress vs. Narotam Das (1 ). In that case it was held that the fact that person committed evidence to connect the person committed with offence was a defect in law sufficient to justify the quashing of the commitment. The question come to be examined by the Calcutta High Court in Sheobux Ram vs. The Emperor (2) There was a difference of opinion between two learned Judges who originally heard the matter as to whether in a case where it was be said that there was no evidence, the commitment can be quashed under sec. 215. The matter was then referred to Harington J. , and he was of the opinion that this was a question of law, and it was open to the High Court to quash the commitment on the ground that there was no evidence in support of it. We may in this connection refer to the following observation of Harington J. at page 839 : - "the test which in my opinion should be applied to decide whether a committal ought or ought not to be made on the facts is this assuming that the whole of the evidence telling against the accused is true, is there a case which a Judge at a trial could leave to a jury ? If the evidence is such that a Judge would have been bound to rule that there was no evidence on which a jury could convict, then a committal ought not to be made. If there was any evidence which called for an answer, however great the preponderance in favour of the prisoner might be then the committal was proper. " If we may say so with respect, this view lays down the correct scope of the wards "joint of law" used in sec. 215. The view of the Allahabad High Court has been consistent, and we any refer to a later case on the point in re Emperor vs. Mihi Lal (3 ). In that case Rachhpal Singh J. quoted with approval the observations of Harington J. in Sheobux Ram's case (2), and laid down the law in the following words: - "in cases in which there is no evidence to warrant a commitment and in cases in which commitment is made on legal evidence at all, action may be taken under Sec. 215. " The view of the Calcutta High Court was accepted by the Rangoon High Court in Mahomed Moidin vs. Emperor (4 ). So far as the Bombay High Court is concerned, the view prevailed for a long time that a commitment could not be quashed on the ground that there was no evidence in support of it, and reference in this connection may be made to Emperor vs. Suleman Ibrahim Nakhuda (5 ). With all respect however to the learned Judges we must say that the reason given for the view taken does not appeal to us. It was said that is might be that the prosecution might have evidence to offer in support of the charges in question in the sessions court independently of the evidence recorded by the committing Magistrate, assuming that the witnesses examined before that magistrate had said nothing with reference to the offence charged. We are of the view that if there is such evidence available, it should be produced before the committing magistrate, and the prosecution cannot, after with holding such evidence, ask the High Court to assume that some evidence might be available. In a recent case Krishanji Babacharya Mahuli vs. The State (6) however, Chagla C. J. has apparently taken a different view. Relying on Harendra Lal Roy Chowdhury vs. Sm. Haridasi Debi (7), he has not followed the earlier case of the Bombay High Court, and has held that fact that there is no evidence at all against the accused is a question of law on which the High Court can certainly interference and quash the committal order. The view in the Madras High Court has also been varying. In re Sessions Judge of Coimbtore (8), it was held that where there was no evidence to justify commitment it was not open to the High Court to quash it. The reason given was that the accused was entitled to acquittal, and the result of quashing the commitment would be that he might be charged again with the offence. In that case the Sessions Judge had recommended the quashing of the commitment with the idea that there might be further investigation, and another charge-sheet by the police. In those circumstances, the remarks might be justified, but we feel with all respect that those remarks would not apply to cases of all kinds. In Narapureddigari Narayanareddi vs. the State (9) a learned Single Judge of the Madras High Court without referring to the earlier case of his Court has taken the view that the term "point of law" includes an order of commitment rested upon no acceptable and valid evidence. The view of the Lahore High Court has also not been consistent. In Gansham Das vs. Emperor (10),it was held by a learned Single Judge that where there was no evidence to support an order of commitment, the commitment must be quashed under sec. 215 because absence of evidence is a question of law and not of fact. This view was dissented from by another learned Single Judge in Hassan Din vs. Emperor (11 ). The matter came up for consideration again in Chaudhary Bhagat Ram vs. Mojor P. T. James (12) , by a Division Bench, and the view taken in A. I. R. 1930 Lahore (10) was approved. The Mysore High Court has followed the earlier Madras case (8) in a Full Bench decision in T. Krishniah vs. Government of Mysore (13), There was, however, difference of opinion, and one of the learned Judges dissented. In K. K. Anthrew vs. The State (14), the Travancore-Cochin High Court has held that when there is no evidence in the case on the basis of which the accused can be convicted on trial, it is a point of law and the High Court can set aside the order of commitment.
(3.) THE consensus of opinion now seems to be in favour of the view taken by Haring-ton J. in Sheobux Ram's case (8 ). This view gets support from the principle laid down by the Privy Council in Harendra Roy Chowdhury' case (7) That was a case under the Civil Procedure, and the question arose whether in a second appeal it was possible to disturb the concurrent findings of fact arrived at by the two lower courts, and their Lordships observed as follows at page 71 - "but their Lordships are of opinion that the principle of concurrent finding of fact does not apply to such a case as the present inasmuch as it is a case of no evidence, and according to the well-known principles of our law a decision that there is no evidence to support a finding is a decision of law. " What applies to evidence in support of a finding should, in our opinion, equally apply in principle to the case of evidence in support of an order of commitment. THE basis laid down by Harington J. in Sheobux Ram's case (2) is the same which is to be found in section 273 of the Code of Criminal Procedure. That section gives power to the High Court in criminal sessions trials to make an entry on the charge that it is clearly unsustainable, and such entry has the effect of staying proceedings upon that charge. This order of the High Court is clearly a matter of law, for if it was a matter of fact, the question would have to be put to the jury. THEre is no corresponding provision giving power to the Sessions Judge to make a similar entry, and it seems to us that the legislature by providing section 215 was giving powers to the High Court in respect of cases triable by sessions courts similar to those which the High Court had in respect of original sessions trials. We are, therefore, clearly of the opinion that where the charges framed by the committing magistrate, on which the order of commitment is made, are clearly unsustainable, the question raised is a question of law, and it is open to the High Court to quash the commitment if it comes to the conclusion that the charges are clearly unsustainable We should like to add that this is different from saying that the evidence is insufficient. It may be sometimes difficult to draw a line between a case of insufficiency of evidence and clear unsustainability of the charges. But the distinction is real and does exist, though in a case of doubt the High Court will not interfere with the order of commitment, The next question, which we have to address ourselves, is whether on the evidence, which is available in this case, it can be said that the charges framed against the accused are clearly unsustainable. The charge against Daya Krishna is that he murdered his wife. The charge against Bhagwatilal is that he disposed of the dead body in order to screen the offender, namely his son Daya Krishna. In order to bring home the respective charges against the two accused, it is necessary to prove that Mst. Kunti, the wife of Daya Krishna, is dead. There is, however, no evidence in this case to prove that. The dead body was Dot available and no post mortem examination was conducted. A skull was said to have been found in some river, but there is no proof that that is the skull of the deceased. There is also no evidence of any witness to the effect that he saw Mst. Kunti dead or saw her dead body. No witness has come forwarded to give direct evidence of the attack on Mst. Kunti, and of her dying on account of that attack. In this state of affairs it seems to us clearly impossible to say that Mst. Kunti is dead, and if it is impossible to say that, the charges framed against Daya Krishna and his father Bhagwatilal would be clearly unsustainable because they depend upon Mst. Kunti being dead. In this connection we may refer to Brij Bhushan Singh vs. Emperor. In that case also the dead body was not found. There was evidence that the deceased had been hit (though in the case before us there is not even that evidence ). Their Lordships observed that no one had seen her dead body, and there was not evidence sufficient to justify a finding that Bilasia was dead. The minimum evidence, in our opinion, which is necessary to prove in a criminal case that a person is dead, would consist of either the dead body being available or somebody's statement, who knew the deceased that he had seen the dead body, or, at any rate, some statement of some witness to the effect that he had seen the deceased being done to death. In the absence of any evidence of this kind, it is, in our opinion, impossible to hold merely from the fact that a certain person has not been seen for a certain period of time that he or she is dead. It may be that from the circumstances, about which the prosecution has led evidence, some suspicion might attach to Daya Krishna or to his father Bhagwatilal in this connection; but as there is no evidence to prove that Mst. Kunti is dead, the charge of murder against Daya Krishna, or the charge of disposing of the dead body against Bhagwatilal is clearly unsustainable. We, therefore, allow the revision, and quash the order of commitment made by the Magistrate, Kotah, under sec. 215 of the Code of Criminal Procedure. ;